ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021728
Parties:
| Complainant | Respondent |
Anonymised Parties | Part Time Lecturer | University |
Representatives |
| Ibec, |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028250-001 | 08/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028250-002 | 08/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028250-003 | 08/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00028250-004 | 08/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00028250-005 | 08/05/2019 |
Date of Adjudication Hearing: 23/09/2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed as a part Time Lecturer from January 2012 to January 2019. He has claimed that he is owed monies in respect of work carried put in the pursuit of his duties. |
1) Payment of Wages Act CA -28250-001
Summary of Complainant’s Case:
a) Second grading
The Complainant has claimed for travelling to Balllsbridge and spending two hours on this matter.
- b) Second marking
He has claimed for travelling to Foxrock meeting with the First Marker and then completing the task at home.
He submitted claims in respect of a) and b) in the past and was paid.
- c) Feedback to students
He stated that this was the major part of his complaint. He stated that he provided outside of lecturing time supporting students on line. He was paid for proving feedback to students in the past.
He has claimed €750 for the above tasks.
Summary of Respondent’s Case:
Preliminary point: Time limit
The Respondent stated that these monies were the subject of a claim made to the company in respect of work done up to June 2018. This was claimed by the end of June 2018.
According to Sec 41(6) of the Workplace Relations Act 2015 Subject to subsection (8), “an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.
The complaint was presented to the Commission on 8th May 2019. This complaint is out of time
Notwithstanding the time limit the hey stated as follows:
- a) & b) claims
They stated that in respect to a) and b) above the original claim was submitted in June 2018 in respect of work done by June 2018.
Rates of pay are agreed with SIPTU. In the contract of employment Payment Rates were attached and it states, “Other assessment rates include an element of second marking.” The Complainant has carried out second marking since 2012 and has never raised this matter before. This was explained to him at commencement. The Glossary pay form also explains this.
His claim in 2018 was rejected.
- c) Feedback to students
They stated that rates of pay which includes the giving of feedback to students has been agreed with SIPTU. The Job Description is very clear that this is part of the job. It states, “Be available to students at notified times outside of class contact hours for guidance and support”. This was further explained to him at induction. This has not been claimed before. This practice applies to all this college’s lecturers and is an accepted practice in 3rd level institutions. They advised that where informal feedback Is provided there is no additional pay. Where formal feedback is prearranged and delivered then there is a payment made. What the Complainant is claiming for is informal feedback and that is built into the rate.
Findings and Conclusions:
Preliminary Point : Time Limit
I find that this complaint refers to a claim for monies accruing in June 2018 and claimed for in June 2018.
I note the provisions of Sec 41(6) of the Workplace Relations Act 2015 Subject to subsection (8), “an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.
I note that the complaint was presented to the Commission on 8th May 2019. The period that may be investigated is 9th November 2018 to 8th May 2019, unless an extension of six months is granted. No such extension to the time limit was sought or granted.
Therefore, I find that this complaint is out of time and I do not have jurisdiction to deal with it.
Decision:Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I have decided that the complaint was out of time and so I do not have jurisdiction to deal with it. I have decided that the complaint is not well founded.
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2)Organisation of Working Time Act CA 28250-002/003
Summary of Complainant’s Case:
This complaint is the same as c) above.Summary of Respondent’s Case:No response required Findings and Conclusions:Decision:Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. This complaint is the same as part c) of the Payment of Wages Act and entered in error. I have decided that this complaint is misconceived an so it fails. |
3)Protection of Employees (Fixed Term Workers) Act CA 28250-004/005
Summary of Complainant’s Case:
He stated that he should have had a contract of indefinite duration. He resigned his position in January 2019 highlighting the fact that he should have had a contract of indefinite duration.
Summary of Respondent’s Case:
Preliminary point: Locus Standi and Time limit
1)Locus Standi
They stated that by operation of law he had a contract of indefinite duration by August 2016. He resigned his position in January 2019. He presented his case to the Commission on 8th May 2019. He was not a fixed term worker at the time of presenting the complaint, as he had a contract of indefinite duration and he had resigned.
2) Time Limit According to Sec 41(6) of the Workplace Relations Act 2015 Subject to subsection (8), “an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. The complaint was presented to the Commission on 8th May 2019. This complaint is out of time Findings and Conclusions:Preliminary Point: Locus Standi |
I find that the Complainant was entitled to a contract of indefinite duration by August 2016 by operation of law.
Therefore, I find that the Complainant was not a fixed term worker.
I find that I do not have locus standi (standing) .
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that as the Complainant was not a fixed term worker at the time of presenting his complaint, I do not have “locus standi” to hear this complaint.
I have decided that this complaint was not well founded. |
Dated: 19th November 2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
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